State lawmakers pass nation’s toughest restrictions on sale of flavored tobacco and vaping products

The legislation now awaits action by Governor Charlie Baker.Jessica Rinaldi/Globe Staff/Globe Staff

State lawmakers Thursday passed the nation’s toughest restrictions on the sale of flavored tobacco and vaping products, including menthol — a forceful response to an epidemic in which one out of every five Massachusetts high-schoolers use e-cigarettes.

The legislation, completed after midnight and just before lawmakers broke for a weeks-long recess, quickly drew national attention, with public health advocates and former New York City mayor Michael Bloomberg urging Governor Charlie Baker to sign what would be the first statewide prohibition of menthol cigarettes in the country.

Baker, who in September ordered a temporary ban on all e-cigarette sales following a nationwide surge of vaping-related illness, did not commit Thursday to signing the 21-page bill into law, saying he needed time to review its details. But the Republican governor, who has 10 days to act on the legislation, called tackling vaping use a “front-and-center issue” for his administration.

“This nation-leading step will save lives,” House Speaker Robert A. DeLeo said Thursday after lawmakers passed a compromise version of the bill.

The Legislature’s relatively swift action stands in contrast to the retreat the Trump administration appears to be beating on the issue, with the president backtracking on a similar ban on fruit, candy, and mint-flavored e-cigarettes a few months after saying he intended to “clear the market” of flavored vaping products.

The Massachusetts legislation targets both traditional and electronic cigarettes, including banning sales of mint and menthol flavors of each. It would also levy a 75 percent excise tax on vaping products, and dramatically hike the penalties for selling or providing tobacco to underage customers, making it $1,000 for a first offense.

But unlike Baker’s temporary ban initially did, the bill would not apply to marijuana products. It would immediately ban the sale of flavored vaping products, while pushing the prohibition on menthol cigarette sales to June 1, 2020. Sales in smoking bars would be exempt.

Senate President Karen E. Spilka said that given the precariousness of the state’s temporary vaping ban, which is slated to end Christmas Eve, it was important to get the bill to Baker before formal sessions resume in January.

“This will provide a certainty to consumers, to retailers, to everybody, to know hopefully what the law is,” she told reporters.

Retailers and the industry panned the legislation, warning it would cripple some businesses, but it drew praise from public health advocates around the country, who believe the measure could become a national model in the face of uncertainty at the federal level.

“A number of states are seriously considering similar legislation. By being first, Massachusetts is going to serve as a catalyst for what may be one of the more fundamental changes in tobacco our nation has experienced,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

Myers said the sign that the Trump administration is backing off “its commitment to sweep the market of flavored tobacco products makes it more important than ever that states and localities take decisive action.”

States, including New York and Michigan, have instituted temporary bans on flavored products. But the Massachusetts bill would be the first legislation to ban flavored tobacco products, a decade after Congress prohibited flavored cigarettes sales but with the exception of menthol.

“It’s not enough to just remove flavored e-cigarettes because we know that kids will simply migrate over to other flavored tobacco products left on the market,” said Marc Hymovitz, director of government relations in Massachusetts for the American Cancer Society Cancer Action Network.

Menthol cigarettes — which federal officials say are heavily marketed toward African-Americans — also account for the bulk of tobacco-related health disparities between rich and poor Americans, and white and black Americans, said Myers of the Campaign for Tobacco-Free Kids.

The legislation was part of a flurry of bills lawmakers juggled during the final day of formal sessions this year. They also sent to Baker’s desk a landmark bill overhauling the state’s school funding formula, legislation banning the handheld use of cellphones while driving, and a package aimed at expanding health care access for children, among others.

But the House and Senate were unable to come to an agreement on a budget to close out the fiscal year that ended in June, an extremely unusual impasse that appears to hinge, in part, on a dispute over a corporate tax change.

How exactly Baker will approach the tobacco bill is unclear. Though he once campaigned on not raising taxes or fees, he has previously proposed taxing e-cigarette products — at 40 percent — and said he supports taking flavored vaping products from bubble gum to raspberry “out of the mix.”

But he has avoided directly answering questions on whether he backs banning mint and menthol sales specifically. And while he said Thursday he understands advocates’ concerns for taking them off the shelves, he added that there’s a “legit concern” of fueling a black market, particularly in communities of color.

The legislation’s progress sparked fierce resistance from the vaping industry and convenience store owners, who criticized the ban as heavy-handed and too broad in its attempt to tamp down on youth smoking.

They’ve also warned of fiscal fallout. The Vapor Technology Association, an industry trade group, said the bill would “destroy” what is a $331 million industry in Massachusetts, and the New England Convenience Store and Energy Marketers Association estimates the flavor ban would cost $250 million in revenue in mint and menthol sales.

The Department of Revenue estimates the tax revenue this fiscal year from mint and menthol to be far less — between $135 million and $160 million — but state officials stress they have yet to do an analysis on the bill itself. Meanwhile, lawmakers have said the 75 percent excise tax on vaping products could produce $10 million to $15 million in additional revenue.

“We have basically vacated a $1 billion market,” said Jonathan Shaer, executive director of the New England Convenience Store and Energy Marketers Association, predicting that consumers will simply turn elsewhere.

The Centers of Disease Control and Prevention has documented a flood of vaping-related illnesses, including 2,290 reports of lung injuries and at least 47 deaths nationwide as of this week. Massachusetts officials said Wednesday that they’ve reported 81 cases to federal officials, and three people in the state — a woman in her 40s, a man in his 50s, and a woman in her 60s — have died.

Lawmakers argue that the legislation is necessary to quell the spread of youth vaping specifically. By offering their products in flavors such as cotton candy and “appletini,” e-cigarette companies are turning to Big Tobacco’s playbook, they say — targeting products at young people in hopes of getting them addicted.

“It’s the only way to really protect our kids,” said state Senator John F. Keenan, a Quincy Democrat who is the lead Senate sponsor of the flavor-ban bill.

A state report released in March found that as of 2017, the most recent state-level data available, one of every five high school-level youths used e-cigarettes. The vast majority of those — 80 percent — puffed flavored products. (Combustible cigarette use among youths, meanwhile, is far lower and on the decline, with just 6.4 percent reporting they smoked within 30 days.)

Correction: An earlier version of this story used the incorrect name for an industry trade group. It is the Vapor Technology Association.